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Want to sue the seller for backing out after taking deposit?

10K views 100 replies 16 participants last post by  Mukhang pera 
#1 ·
Offered accepted and signed contract on Mar 5, 2020
Deposit submitted to the company of seller's realtor on the next day.
Informed landlord to vacant the house at the end of the month.
Inspection completed on Mar 10, 2020 and started negotiation for defectives. Seller offer little bit of cash compensation and would repair some minor works.
We accepted seller's offer for defectives on the Condition day of Mar 16, 2020 at 5PM. Condition removal time is at 9PM.
Now seller is not willing to offer cash compensation and repair minor works as they have received a higher offer. I am interested to buy the house with those compensation.

If the seller doesn't agree, can I sue the seller for mental, emotional and financial distress in the civil court? Please advise.
 
#4 ·
I'm still unclear on how seller is backing out of the deal. You have a sale agreement, conditional upon inspection, right? The inspection uncovered problems, so you can either remove the inspection clause and buy the house anyways, or you can back out of the purchase. The choice is yours, not the seller's. If you want to proceed with the purchase, he HAS to sell you the house (though he's under no obligation to compensate you for any problems found by the inspection). Since you say the seller is the one who is backing out, there must be additional details that you haven't explained, eg you cancelled the deal first.
 
#7 ·
We never cancelled the deal. The condition removal date is Mar 16 at 9 PM and we sent the amendment at 5PM. The seller has changed her mind as she has received a better offer. She has counter offered that if we want the house then we can take it without any compensation for defectives. We have email communication from the seller's realtor.
 
#6 ·
Your post is a bit fuzzy, perhaps because English is not your first language (just a guess in that regard). Not sure what province you are in (I suppose everyone here but me knows without being told).

Anyway, as I apprehend the facts from the rather opaque rendition, the time for removal of subject clauses was March 19 at 9 p.m. Before that, you got the vendor to agree to offer some "compensation", or an abatement of the purchase price, in light of certain deficiencies revealed by an inspection. Apparently, the vendor also agreed to perform certain repairs (I would hope there was an agreed time for repairs). So, were these terms made a written addendum to the contract of purchase and sale? If not, I would say forget about them. If yes, you have an action for breach of contract. You may sue for damages. The quantum of damages will be the value of the agreed compensation and value of the work to be performed. The best way to quantify it is to close the deal and hire the work done. You may then sue for that cost.

Forget about suing for emotional distress etc. Silly to even think about. This is just a simple business deal gone awry. Happens many times every day. Courts don't hand out such awards for breach of contract simpliciter on a regular basis.

As an aside, maybe you should be happy and let the vendor sell to someone else. With the world nuttiness about C-19, we might be facing a new world order. RE, stocks, etc., will be worth nothing. Now gold, that's different. It's immune to disease, is packed with nutrients and will no doubt ward off infection.
 
#8 ·
Sorry, English is my second language and I live in AB. The wanted to complete the repair before possession date contingent to weather condition. We have submitted an amendment based on the negotiations. However, the seller didn't sign it as she has received a better offer and counter offered us to take it as is and we won't get any compensations for repairs. I spent around $400 inspection and a lot of time to get mortgage approval. In the meantime, I have informed my landlord that I will vacant the place at the end of this month.

I am thinking to go to the small claim court. At the end, we accepted what the seller offered but the seller has changed her mind at the last minute.
 
#10 ·
Yes, it might make sense to go to small claims. Don't ask for mental distress or such damages. You will lose credibility. Just present a good case for out-of-pocket costs, etc. That can extend to costs of you having to leave your present rental premises and renting elsewhere, when you expected to have the house to move into.

I am less sure of AB law, but probably similar to BC. You could block the sale by commencing an action in the Court of Queen's Bench and filing a lis pendens (or certificate of pending litigation) against the property and seek the remedy of specific performance, i.e., an order forcing a sale to you, as agreed. It depends on how strongly you feel about the particular property. A small claims action won't allow you to file a lis pendens small claims cannot grant the remedy of specific performance, only damages. Until recent times, BC courts were reluctant to grant specific performance unless you could show that the property was somehow unique and you could not readily find somehting similar in the marketplace. But that strict view has softened and vendors in default are now more commonly held to their bargains.

And, don't be sorry about my petty complaint about your English. It's not bad at all, but for legal matters, perhaps suffers from a certain lack of precision. I am sure your English is a lot better than my facility in your native tongue.
 
#11 · (Edited)
The realtor of seller forwarded us the following email on Mar 13, 2020 without the seller's contact info.

“Based on the estimates we’ve received, the listed issues would not cost $10,000.00. In addition, evaporative humidifiers can operate with hot, cold, hard, or soft water. Hot water is preferred as it supplements the heat from the HVAC system heat call to increase the evaporation rate.

We will compensate the buyer $XXX.00 based on the Buyers agents estimates (which are above what we’ve been quoted) to fix the vertical crack on the foundation wall ($XX.00), closing the electrical box inside the garage ($XX.00), and fixing the washing machine drain line ($XXX.00). The additional $XXX.00 of compensation can be used to cover the “other minor jobs” requested by the Buyer.

We will fix the walks and steps in the front and wooden steps to side door.

We will not compensate for repairing the connection line for the humidifier (see above), or compensate for the other cosmetic issues clearly visible during viewing and negotiation, as well as discussed by you with their realtor.

Overall, we are fixing and/or compensating the Buyer for 7 of the 10 issues.”

After that, we have tried to get more but that was their final offer. We have accepted the offer on the condition day at 5PM and sent it to their realtor for the seller's signature. The realtor came back with the following reply -

"Hi XXX. I'm very sorry. But the seller has made up her mind. She was actually very frustrated last night by the negotiations and was having second thoughts, as I mentioned in our text. But now the potential for new buyers has her convinced she will not offer any concessions. I understand that your buyers have spent the last couple days trying to get a few more thousand dollars to repair the items. But now she has the opportunity to sell the home for more money and is choosing that option."
 
#30 ·
We will compensate the buyer $XXX.00 based on the Buyers agents estimates (which are above what we’ve been quoted) to fix the vertical crack on the foundation wall ($XX.00), closing the electrical box inside the garage ($XX.00), and fixing the washing machine drain line ($XXX.00). The additional $XXX.00 of compensation can be used to cover the “other minor jobs” requested by the Buyer.

We will fix the walks and steps in the front and wooden steps to side door.

We will not compensate for repairing the connection line for the humidifier (see above), or compensate for the other cosmetic issues clearly visible during viewing and negotiation, as well as discussed by you with their realtor.

Overall, we are fixing and/or compensating the Buyer for 7 of the 10 issues.”
[/I]
After that, we have tried to get more but that was their final offer.
A perspective outside of the contract:

Other than the vertical crack that may or may not be an issue, all of those problems seem to be very minor issues that fall under the category of "regular maintenance" and seem quite petty to bring up when buying a house. Maybe they should have fixed them first but other than the crack (that may not be an issue) nothing there would deter me from buying a house if I liked it, and nothing that's expensive to fix with basic DIY skills.

It can be very expensive to own a house if you can't do basic maintenance.
 
#12 ·
Please understand scorpion that I have not seen all of the paperwork, emails, etc., and I am not wholly familiar with Alberta law (which I think is very similar to that here in BC in real estate matters).

With that caveat, it seems to me that you made an offer, subject to inspection. With the inspection in hand, you indicated that you would not lift the subject clauses without some concession with respect to repairs. Then the vendor, through the vendor's agent, made, in effect, a counter-offer to sell with some, but not all, concessions agreed. You communicated your acceptance within the time allowed - before 9 that night. The contract became final and binding at that point. If the vendors sells to someone else, that's a breach of contract. In fact, the vendor is already in breach, putting you on notice that the property will be sold to someone else. That is what lawyers call an "anticipatory breach".
 
#15 · (Edited)
I just took a quick look online and it appears that the monetary jurisdiction of AB small claims court is $50k. Even if only $35K, I would probably elect to proceed in that forum. To sue in a superior court is more tthan you want to get into. Darn near impossible to do without a lawyer and, with a lawyer, even a $100,000 win won't put much in your pocket at the end of the day. In small claims you can go in in your jeans and your T-shirt and say, "Hey. your Honour, this guy screwed me" kinda' thing. That informal approach would be met with some opprobrium in the more lofty atmosphere that prevails in the higher courts.

Better to go to small claims and, in your written pleadings, set out the full amount of your claim. If it adds up to $70,000, then say say you are waiving the excess to attorn to the jurisdiction of the court, meaning you will accept judgment for $50,000 even though you might be able to prove a larger amount of damages.

I might not get back to this thread for a bit. Carrying on a Messenger conversation with a friend in the Philippines at the same time as this. I have to focus on that for awhile, getting more intense. My Filipino friend was supposed to come here, but, of course, denied a tourist visa by Canadian immigration. I was then supposed to go there in 2 weeks, but covid has put paid to that. Too bad my friend cannot find his way to Roxham Road, and get the red carpet entry. But then, he's probably too well-educated and too self-sufficient to be seen as desirable. He would probably be shot.
 
#16 ·
Sorry but this is absurd, the advice you are giving him about going to court is just going to waste his time (and probably money) and is not going to result in any payout.

OP is acting on his emotions and not thinking logically, he is angry at the sellers and wants to punish them. He has not demonstrated that he has suffered any financial loss (other than paying for the inspection, but I doubt he can get compensation for that).

The email from the seller agent about fixing the defects will not be seen by the court as a breach of contract.

I am not a lawyer so maybe I am wrong, but my experience tells me this is not worth pursuing.
 
#17 ·
Disagree. He definitely would win, this is a clear breach of contract. Best case scenario is he wins the small claims of 50K or whatever it is, and then prices drop and he gets a better deal.

But there must be a sign of loss, and if prices are dropping, which they most likely will be, then it might be hard to show a loss at least on the purchase price. Maybe on moving costs, extra rent or whatever.
 
#19 ·
I was browsing online and found that I need to provide the seller a demand letter. Since I am planning to go to the small claim court in Calgary, I am thinking to write it by myself or should I find a lawyer? I think most of the real estate lawyers are good for completing the transactions but this is a breach of contracts....Really upset now..already started to pack our stuff in the last two weeks.

Any step by step guidance will be highly appreciated.
 
#20 ·
I am not sure I would go so far as to say that you "need to provide the seller a demand letter", I did say in post #14 above: "Assuming you elect damages, you should put the vendor on notice that you will seek damages." So, generally a good idea. Although it's generally held that issuing and serving the writ serves as pretty good notice of what you are thinking.

As for doing it yourself, maybe, with a bit of help. You are right about most real estate lawyers being competent conveyancers but most do not take on real estate litigation. Litigation has become too complex for lawyers to dabble in it. Not like the old days of the general practitioner who would take on anything. Not really possible any longer. So you will need someone who does litigation and, preferably, someone who has engaged in real estate-related litigation. But you are probably looking at about $400 an hour.

I expect AB is like BC and the small claims court is intended to the "the people's court" and it discourages lawyers from attending. Hence, in BC, no legal costs may be recovered by the successful party. But you might want to retain counsel to get you started, maybe by way of the demand letter and preparing the docs to start your claim, as well as giving a bit of initial advice. Your proposed litigation is not really complicated - a fairly straightforward breach of contract case with damages not really difficult to quantify. You should check at the outset if the court may hear a case for breach of K for sale of land. It should be easy to find on a court website. Here in BC, as I recall, the small claims court can hear such a case, but it cannot grant a decree of specific performance. That's not what you want anyway. You should also find online some guidance about commencing and prosecuting your action. As I said, the scc is geared to being a court for non-lawyers.
 
#22 ·
The realtor asked me not to accept the offer as is because the seller offered us to lower the price by 2k and would do some minor repair works. He told me that this is the first time it happened with him usually buyer backs out of the deal. He would find a lawyer but I don't know if the lawyer would be as experienced as it required for this claim.

He also suggested me to put a lien on the property once we submit the claim to the SCC.
 
#24 ·
You need to consult a lawyer. In my experience of buying and selling real estate you have a choice. You can go through with the deal as originally written because you have a contract. Or you can drop the whole matter if you are unhappy with the results of the home inspection. In either case, you have a certain deadline of when you can waive the inspection clause. Once again, consult a lawyer. Only he can tell you where you stand, and then only after reviewing the paperwork.
 
#25 ·
I'll agree with Rusty, in part. I don't agree with the broad comment about having a choice, completing as written, walking away if the inspection reveals an issue, etc. That's his experience and view, but not tthe only way of looking at it. In any event, this case has moved somewhat beyond the stage where those comments might be apposite.

As for consulting a lawyer, probably a good idea, to the extent of having someone with knowledge of AB law provide guidance. As I said earlier, I have not seen the paper trail, the emails, etc., nor have I been informed of the contents of any discussions along the way. So to the extent I may be seen as giving advice here, I am working with little.

I not not think that retaining counsel to do battle is worthwhile. Not unless the upside is an award of damages of at least $100,000. That's an absolute minimum, given the cost of litigation. I have understood from my early days of practice that one must be rich or crazy to start a lawsuit in the superior courts. On top, at least in BC, if you commence an action in Supreme Court, but recover a judgment within the small claims jurisdiction, you will likely find yourself being awarded none of your legal costs, even though you won. So, going to Supreme Court and getting judgment for $35,000 might see you paying legal fees of $70,000.

Unless AB is significantly different, in BC, there is little downside to going to small claims. If you go in on your own, if you lose, the most you will be out of pocket is the small amount you paid to file the action, maybe a service fee and a few small disbursements and the winner's filing fee. So you might be out $500. If you go to Supreme Court and lose, you will likely end up owing your lawyer $70,000 and have to pay the winner's costs of $40,000. That's why it pays to remember: "Justice is open to every man, just like the Ritz Hotel."
 
#26 ·
My plan is to go with small claim court. Here is the email I am forwarding to the seller - Please help me to correct any sentences or if you would like to add anything.

Hi XXXX:

1. We have accepted your price of $340,000.00 and signed a Residential Purchase Contract on March 4, 2020 with financing and inspection conditions. The condition removal date was on March 16, 2020 at 9 PM.
2. We were confident enough to complete the deal. Therefore, we informed our landlord on March 5, 2020 that we would leave the house at the end of March 31, 2020. See attached screenshots for notice to landlord and packed for moving.
3. We paid for around $400.00 and completed the inspection by the certified master inspector, XXX and found some defectives along with a major safety issue of patio wall in your house.
4. We started to negotiate through our realtor for defectives and agreed on what you offered us before the condition removal date and time. Please see below that you offered us $2,000.00 of compensation and would repair walks & steps in the front, small pocket gate beside the garage and wooden steps to side door. In another email, your realtor has informed us that the repair would be done before possession (we will have to work out weather depending repairs) and we are okay with it.
5. Your realtor has informed us on March 16, 2020 at 7:39 pm, that “Hi XXX. I'm very sorry. But the seller has made up her mind. She was actually very frustrated last night by the negotiations and was having second thoughts, as I mentioned in our text. But now the potential for new buyers has her convinced she will not offer any concessions. I understand that your buyers have spent the last couple days trying to get a few more thousand dollars to repair the items. But now she has the opportunity to sell the home for more money and is choosing that option. ”
6. I strongly believe that you have breached the contract when we accepted your offer of compensation for defectives before the condition removal date as per our signed Residential Purchase Contract. We also submitted the signed amendment to remove the financing and inspection conditions before the condition date and time.

Although I don’t want to do it, I wouldn’t have any choice other than taking you to the court unless you agree on what you offered us regarding the compensation for defectives and sell the house to us. We will leave it to a Judge to decide about it. If you sell the house to us, we will really take good care of your house.

Here is the court case in BC that is very similar to what is happening with us now. I have two years from the breach of contract date on March 16, 2020 to file a claim in the court.

Sun v. Kang, 2019 BCSC 1016. I have attached the judgment in case the following doesn’t work.

https://www.bccourts.ca/jdb-txt/sc/19/10/2019BCSC1016.htm

Therefore, I am requesting you to reconsider what you offered to us on March 14, 2020 and honor it. Otherwise, we will not have any place to live after March 31, 2020. What would you do if you were in our position now? I believe we can still make it right and fair for both parties.

Regards,
 
#27 · (Edited)
Not an all bad letter. Not what a lawyer would write, but you are not a lawyer and not to be held to that standard.

However, a note of caution. The letter suggests that you have not accepted the breach of K and are treating the contract as still on foot. You are urging the vendor not to breach and, instead, to perform the agreement. Nothing wrong with that, but then you too must carry on under the K and hold yourself ready, willing and able to complete. I am not sure what the date set for closing is, but it must be soon, coinciding with the end of your tenancy (incidentally I note that, under BC law, you gave an invalid notice to end the tenancy. Here, to be effective, a notice given in March 2020 would not be effective to end a month-to-month tenancy in March. A notice given in March could only be effective as at the end of April. To validly terminate as of March 31, notice had to be given by Feb. 29. Do you know if your notice is lawful? If not, is your landlord okay with short notice?).

So, to be ready, willing etc., you must have the conveyancing documents prepared and supplied to the vendor ahead of closing and you must have your funds at hand (usually in your solicitor's trust account) by the closing date so you will be in a position to tender. In short, you must act right up until the end of business on the day set for closing as though you are going ahead and must do so. if the vendor decided to cave in and execute the conveyance docs and accept tender, you would have to make tender and I do not think you would be allowed to refuse to complete over the repair issues. That would not raise a "fundamental breach" entitling you to rescission. You would have to close then sue for damages over the repair issues.

Also, I am assuming you have paid a deposit and it is being held in a realtor's trust a/c. Am I right? You have t be careful that you do nothing that could be construed as a breach on your part and end up having to fight to regain your deposit.

So scorpion, I fear that you may be relying on me a bit to act as your unofficial counsel in this matter. I am happy to provide some help, but recognize that I have not seen all docs, emails, etc., I have never practised law in Alberta and I can do more than provide some general ideas. For awhile in the 80s I contributed to some Alberta-based law publications and had to familiarize myself with certain aspects of Alberta law, including contracts and real estate, but that's awhile back. BC and Alberta law in those fields was then developing in very much the same way and I expect the two are the same today in most respects. But paying for an hour or so of a local expert's time might be prudent. It sounds like there might be enough on the table here to make that worthwhile. Even just to secure the return of your deposit. If that was a non-issue and your case had a max value of, say, $10,000 or so, I would tell you to wing it and not indulge in the luxury of legal advice.add p.s.

P.S. A good read on the topic of election of remedies in real estate cases. A long case, but the pith and substance of that issue may be found starting at para. 56:

Kent v. Kalyk, 2017 BCSC 1074

https://www.bccourts.ca/jdb-txt/sc/17/10/2017BCSC1074.htm
 
#28 ·
I may lose my damage deposit with my present landlord. I got mortgage approval and the down payment is ready too.

Yes, I paid 10k deposit after signing the contract. If they return my deposit, should I accept or refused it?

Everything happened so quickly and I need a little bit of time to find a lawyer here in Calgary. I would really appreciate your help. Thanks.
 
#29 · (Edited)
I would say you may accept, but put it in writing that you accept without prejudice to your right to sue for damages for breach of K.

P.S. again. Check with the Law Society of Alberta (I think that's what the governing body there is called). Maybe they offer what we have in BC - the Lawyer Referral Service. It's a list of lawyers and their areas of practice/speciality, who will take on new clients and offer an initial 30-minute free consultation.
 
#37 ·
I was interested to buy the house as it was a reasonable deal and we like the house. Similar houses are selling 315k to 320k lately in that area. It was bright and the basement was completed, so we accepted their offer of 340k.

I have started to feel good now the way economy is going nowadays. Those houses would be 260k - 280k very soon. Regardless, I have two years to file a claim against them. I would leave it to judge to decide about it.
 
#33 ·
It should also be pointed out that Judges are only interested in facts.

You either have a valid contract stating the seller will pay for repairs or you don't.

If a plaintiff loses a civil case, they are often ordered to pay the defendant's legal fees. This is to discourage misuse of the court system.
 
#40 ·
I have received an email from the realtor of seller that the seller would compensate for defectives and repair some works. If I am not mistaken, that email would count as an offer to me and I accepted that offer prior to the condition removal date by submitting an amendment to the purchase contract.

10) Acceptable Methods for Acceptance of the Offer and Providing Notices
Section 14.1 in the new Alberta real estate purchase contract involves the mechanisms for delivering notice. As above, both the old and new Alberta real estate purchase contract allows for notices (including offers and final acceptance) to be sent to the real estate agent. Aside from the bold reminder note, the key difference, is that new contract now allows for delivery of notices (and all other documents) by email, a change that was needed for some time given commonality of email communication and its widespread use in the real estate industry. Interestingly, the new section 13.2 deems notice to be effective at the time the email was sent rather than when it was received.


https://kahanelaw.com/top-changes-alberta-real-estate-purchase-contract/
 
#34 ·
Sometimes it pays to take a step back and look at the entire situation.

How badly do you want this particular house? Sometimes it isn't just about the money. When someone finds what they consider to be the 'perfect house', arguing over a couple of thousand dollars just doesn't make any sense.

That brings me to what would it really end up saving or costing you if you agree to their terms and complete the sale. It sound like around $2000 more you would pay but how unimportant would that be in the long run. If say you pay $340k today and have to put in another $2k for repairs, you are in for a total of $342k obviously. But if you stay in the house for say 10 years and sell at $500k, how much will having paid $2k more bother you then?

I think if I were in your situation that is how I would try to look at it. Do I really want this house and how significant will the extra cost to me to get it likely be when I sell. The idea of actually going to court over it simply makes no sense to me. Too much hassle over too little money.
 
#35 ·
Maybe I am missing something that the above 3 responders recognize here that I do not.

As I apprehend the facts, the vendor has already inked a deal with someone else at a higher price. That might be a wholly erroneous conclusion, but it was I thought was being said. But, if by some strange circumstance I got it right, can scorpion now simply return to the vendor and say "Fine, I'll close at month end at $340k and you won't have to make any allowance for repairs. I'll let you renege on that."?

So, if there be any truth to the notion that the vendor has balked because of a higher offer, if said offer has been accepted, do we not face a situation of greater difficulty than simply saying let's get it done at $340K? Will the vendor not now want scorpion to come up to at least the price being offered by the other suitor? And, if there is a signed deal with that other purchaser, I see much potential for a lawsuit at the hands of that purchaser, who might feel a tad annoyed at being told the vendor has now elected to breach that contract. Of course, maybe that disappointed purchaser will simply take a sagsonian approach and say contracts are made to be broken and we meekly move on when that occurs and suck up any costs and inconvenience we have incurred.
 
#36 ·
Here is the reply I have received from the realtor of seller.

"Could you please have your clients speak with your broker. They very clearly did not waive their conditions. Therefore they had a conditional purchase contract. Not a complete purchase contract. Again, I’m very sorry for their situation but they had every opportunity to waive their conditions, but they did not. So the contract is completely collapsed. Please, could either you or your broker explain this to them."

Based on the contract law if I remember correctly (took a business law course at the U of Calgary in 2009), when one party accepts other party's offer by verbal or written, it is a contract that is abide the law. We accepted their offer of compensation and submitted the signed amendment form to complete the transaction before the condition deadline and then the seller refused to compensate for defectives. My understanding is that the breach of contract. However, I am not a lawyer...:)
 
#42 ·
This is where a close reading of the documents becomes important.

If there was plainly a lack of written removal of the subject clauses, the vendor's agent would be correct and the deal never came into existence. From what I was able to gather from your earlier posts, before the time for subject removal arrived, your agent conveyed to the vendor's agent your wish for some concession on account of defects revealed by the home inspection. The vendor's agent contacted the vendor and some agreement was made and you signed a contract amendment accordingly , including a waiver of conditions (or removal of subject clauses...same thing) and the deal became final and binding.

You mention "when one party accepts other party's offer by verbal or written, it is a contract". It is unclear to me how much may have transpired at the eleventh hour "by verbal". In an ordinary contracts situation, what is said is just as binding as what is written (although spoken words and their meaning can pose issues of proof at trial). However, contracts for the sale of land are a different animal and must be in writing. In BC, there is some conflicting law on the extent to which a contract for the sale of land may be partly written and partly oral. Without taking time right now to look at some recent cases, I would say the prevailing view is that oral terms relating to minor things can bind and the absence of writing will not undermine the validity of the main contract. But the law is clear that subject clauses are expected to be removed in writing in timeous fashion. If that did not occur, you are dead in the water, except for a possible lawsuit against your agent if he did not advise you correctly on that score. I hate to hear what sags et al. might be thinking about yet more talk of litigation. But I expect it will come.
 
#41 ·
I feel that a contract has been breached in this situation and I want justice. I will take the seller to the court within the two years.

I could have accepted $340k without the compensation for defectives but that is not what the seller counter offer us by email and we accepted it. What does the law say if one party changes their mind after offering something to the other party and other party accepts it?
 
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